Ulf Franke has been over many years one of the protagonists in the struggle for modern international arbitration. Let us look back and discuss what helped us move forward. The struggle is not over, and we all hope that Ulf Franke will continue to fight the good fight.
I. ENTER THE PLAYERS
A. Community Figures
Originally, arbitration was almost another name for conciliation. “We call it lunch.” The arbitrator was a community figure. Normally over lunch at a club, the arbitrator would hear the parties set out their differences. With pudding, he (always he) would say what should be done. There was little choice for the parties but to accept this and, after lunch, smoke (yes, this was done) the pipe of peace. Even ICC arbitration, in its beginnings, was like this.
B. Civil Procedure Specialists, (Retired) State Judges, Litigators
Some of this lingers, but in the 20th century, arbitration soon became a legal phenomenon, a true decision-making process alternative to litigation. The community figures came to be replaced by true arbitrators, first recruited from the ranks of the judiciary, then the law professors. To some people’s surprise, the newcomers did not just broker a compromise, they applied law.
Arbitration law was now recognized as a branch of the law. It was defined, as a leading English textbook still proclaims today, as the law on what courts do about arbitration.